LOBBYING IN EUROPE

Source : Transparency International

Key Findings

The lobbying landscape in Europe is diverse, complex and becoming more complicated.

A broad range of interest groups and their representatives are looking to inform and influence public decision-making, contributing to a generally dynamic democratic environment. A number of actors attempting to influence decisions, from the private, public, not-for-profit and legal fields, do not consider themselves to be lobbying as such, and the activity is often called by another name- advocacy, public affairs or interest representation.

In most countries, lobbying as a stand-alone profession and consultancy service is still in its nascent stages. However, with the EU integration process, making Brussels a hub of European policy-making, there is a growing professionalization of the lobbying industry there. At national level, the system of sectoral representation and institutionalized partners with government is still present. However, a new pattern is emerging whereby the better resourced actors, in particular the larger corporate actors, are increasingly doing their own lobbying rather than relying on representation from business associations.

Hidden and informal influence persists in Europe: A diversity of lobbying techniques are being put to use from open participation in consultative processes to direct communications with decision-makers and the organization of grassroots campaigns. Much of it is legitimate, however some of the activities are specifically designed to confuse and conceal their true origins and beneficiaries from public decision-makers and any external observers. At the more extensive end, this includes acting through front organizations or creating the semblance of public support through manipulated and/or purchased opinions (also known as ‘astroturfing’).

A notable portion of influencing across EU countries occur outside of any formal participatory or consultative channels, drawing on informal relationships and a variety of social interactions. In a number of Member States as diverse as Ireland, Portugal or Hungary, this influence is deeply intertwined with familial, class or business interest structures, creating opportunities for a culture of patronage and insular elites.

The nexus between business and politics is growing even stronger, creating serious conflicts of interest, and with it, the risk of regulatory and policy capture. Of particular concern is the practice of carrying out lobbying activities while holding office, as well as the post-employment ‘revolving door’ between the public and the private sector. Disproportionate and hidden political finance also plays a notable note.

Despite serious risk factors, lobbying regulation in Europe is woefully inadequate, allowing undue influence to flourish.

Measured against international standards and emerging best practice, the 19 European countries (Austria, Bulgaria, Cyprus, Czech Republic, Estonia, France, Germany, Hungary, Ireland, Italy, Latvia, Lithuania, Netherlands, Poland, Portugal, Slovakia, Slovenia, Spain, United Kingdom) and the three EU institutions (European Commission, European Parliament and Council of EU) achieve an overall score of just 31 percent for the quality of their promotion of transparency, integrity and equal access in lobbying.

The vast majority of European countries have no comprehensive regulation of lobbying and no system in place to systematically record contacts between lobbyists and policy-makers. Europe lags behind Canada and the United States in this regard. Only 7 EU countries have laws or regulations specifically regulating lobbying activities (Austria, France, Ireland, Lithuania, Poland, Slovenia and the United Kingdom). Many of the lobbying related laws and regulations that exist in Europe are, to varying degrees, flawed or unfit for purpose. There are also problems with weak implementation and lack of enforcement of existing rules. Only one country, Slovenia, and the European Commission, manage a score exceeding 50 percent. However, they too are faced with a range of problems including gaps in regulatory coverage, loopholes and poor implementation of rules. It is notable that the majority of countries in the centre of the financial crisis (Cyprus, Spain, Italy and Portugal) sit at the bottom, together with Hungary. No less concerning is the performance of the Council of the EU, one of the most powerful institutions in Europe with a score of just 19 percent.

Transparency (Average Score 26%)

Citizens and interest groups have little opportunity to know who is influencing public decisions, on what issues and how. Few countries have any requirements on the public sector to record information about their contacts with lobbyists and lobbying interest groups. The information that is documented is frequently too narrow or sporadic, and often is not proactively released to the public. Although all countries, except for Cyprus have access information laws, in practice, citizens, media or other interest groups face practical hurdles in making a successful information request.

 The seven countries and the two EU institutions that have specific lobbying regulations (European Commission and European Parliament) have all opted for a register as the cornerstone of their approach requiring lobbyist registration and, in most cases, a periodic reporting of activities. Lobby registers can be useful in allowing citizens to track influence in the political process if they are designed with comprehensive definitions (including all who seek to influence public decisions), if they are mandatory, and if they are coupled with meaningful oversight mechanisms. However, none of the existing registers fulfill these criteria. It is important to note that even a comprehensive register of lobbyists is not a panacea to undue influence. It is only one measure among many others that are required to open decisions up to public scrutiny.

Integrity (Average Score 33%)

Neither lobbyists nor public officials are subject to clear and enforceable ethical rules regarding lobbying activity, which is particularly troubling given the low level of transparency. Although most countries have introduced a public sector code of conduct, a number of countries are still missing a similar one for legislators. The codes of conduct that are in place are frequently incomplete and do not provide sufficient behavioral guidance on how to deal with lobbying third parties. Particular problems are present around conflicts of interest management, including the periodic disclosure of interests. Although the majority of EU Member States have some revolving door regulations requiring a ‘cooling-off’ period before former public officials can lobby their former colleagues, only one country, Slovenia, has instituted one for the legislators and even in this case it is not properly applied in practice. None of the 19 countries assessed was found to have effective monitoring and enforcement of the revolving door provisions.

In terms of core ethical guidance for lobbyists, only one country (Austria) has a mandatory code of conduct and under Ireland’s adopted Regulation of Lobbying Act (2015), a regulator is authorized to issue the same; a few others have voluntary provisions. One positive finding is that in most countries there are some voluntary initiatives and attempts to self-regulate lobbying activities, including the promotion of codes of conduct. However, in most cases, these are limited to particular professional associations, which constitute only a fraction of those looking to influence public decision-making. The codes are also usually voluntary and often with insufficient detail and weak complaint mechanisms.

Equality of Access (Average Score 33%)

Public participation is inadequately protected, and certain groups are able to enjoy privileged access to public decision-making. While a variety of public consultation mechanisms do exist across most countries, implementation is usually inconsistent across government, and in no cases are there comprehensive requirements to provide detailed explanations on which views were taken into account and why. A further significant concern is regarding lobbying from the inside through expert and advisory groups convened by the public sector. Only one country (Portugal) has a legal requirement to strive for a balanced composition of these bodies, and in most countries their operations remain opaque to the outside world.

The status quo of a high risk of undue influence on public decision-making, coupled with inadequate regulation and oversight, has led to a serious impact on the public good, as well as the reputation of all parties. There is a high cost of the current approach, including its contribution to instances of environmental degradation, financial collapse, human rights abuse, and the endangerment of public safety amongst others. It has also tarnished the reputation of all those lobbyists and lobbying groups as well as public officials and public institutions that do wish to conduct their operations in an open and ethical way. Levels of public trust are low and given that much of the lobbying activity remains below the radar, the true scale of the problems is likely to be much higher.

Despite the serious shortcomings in the regulatory frameworks across the EU, there are indications of positive momentum for reform. An increasing number of countries, including Estonia, France, Italy and Lithuania, among others, are signaling a willingness to tackle the issue, with proposals at various stages of development. For all its shortcomings, the Irish Lobbying Act adopted in 2015 raises the bar in terms of the quality of regulation in Europe. There are also a number of other promising practices throughout Europe. A growing number of lobbyists and corporates are committing to higher ethical standards in their interactions with government, and are in fact supportive of reforms, recognizing the moral imperative but also the benefits to reputation and the need for a level playing field. There have also been some promising developments in Brussels, and ongoing work on an international legal instrument on lobbying under the auspices of the Council of Europe.

The overall trajectory is encouraged and to be applauded. However, for these efforts to be truly effective, a much more holistic approach to tackling the issue is essential. Unfortunately, many of the efforts to date have been too narrow in scope and do not take into account of a broader framework of transparency, integrity and equality of access in lobbying (as well as the broader regulatory framework).

Equally, a sense of urgency, leadership and political commitment is required to ensure that such measures do not stall in their deliberative stage (as so frequently was the case in the past), but are adopted and more critically, enforced. Only then can public policy again serve the public good, citizens can recover their trust in government, and the term ‘lobbying’ can be associated with participatory democracy rather than corruption.

65 Indicators for Assessing Lobbying Practice

This set of 65 indicators can be useful to measure  the three dimensions of Transparency, Integrity and Equality of Access, as well as 10 sub-dimensions: Access to information, Lobbying registration systems, Verification and oversight mechanisms, Legislative footprint, Pre- and post-employment restrictions, Codes of conduct/ethics for policymakers, Codes of conduct/ethics for lobbyists, Self-regulation of the industry, Consultation and participation mechanisms in public-decision-making and Expert and advisory group composition.

1. To what extent does the law clearly and unambiguously define ‘lobbyists’ to capture all who lobby professionally including professional lobbyists, public affairs consultancies, and representatives from NGOs, corporations, industry/professional associations, trade unions, think tanks, law firms, faith-based organizations and academics?
2. To what extent does the law/regulation define ‘lobbying targets’ in a sufficiently broad manner to include members of national and subnational legislative and executive branches (including advisors) and high level officials in national and subnational public administration, regulatory bodies and private bodies performing public functions?
3. To what extent is the term ‘lobbying’/’lobbying activities’ clearly and unambiguously defined in law/regulation to include any contact (written or oral communication, including electronic communication) with lobbying targets  for the purpose of influencing the formulation, modification, adoption, or administration of legislation, rules, spending decisions, or any other government program, policy, or position?
4. To what extent is there a comprehensive access to information law that guarantees the public’s right to information and access to government data?
5. In practice, to what extent do citizens have reasonable access to information on public sector activities and government data?
6. Do access to information laws apply to lobbying data?
7. Is there a lobbyist register in the country?
8. Where a register exists, to what extent does it capture all who lobby professionally including professional lobbyists, public affairs consultancies, and representatives from NGOs, corporations, industry/professional associations, trade unions, think tanks, law firms, faith-based organizations and academics in the country?
9. To what extent are lobbyists required to register in a timely (within 10 days of beginning of lobbying activity) manner?
10. To what extent are lobbyists required to report regularly on their lobbying activities and expenditures in a timely manner (max real-time - min quarterly)?
11. To what extent are lobbyists and organizations that lobby required to publicly disclose relevant personal and employment information: name of the organization (if applicable); address and contact information; names of all active lobbyists working on behalf of the organization (if applicable)?
12. To what extent are lobbyists and organizations that lobby required to publicly disclose relevant information on lobbying objectives and clients: name of the persons or organizations paying for the lobbying activities; names of the lobbyists’ clients; specific subject matter lobbied?
13. To what extent are lobbyists and organizations that lobby required to publicly disclose relevant information on who they are lobbying and what they are advocating: name and title of the public representative or public body with whom the lobbyist engaged and the date and type of such engagement as well as any information and/or supporting documentation communicated to policymakers?
14. To what extent are lobbyists and organizations that lobby required to publicly disclose lobbying expenditures, including spending on efforts to support lobbying, loans, sponsorships, retainers, or the purchase of tickets for fundraising events?
15. To what extent are lobbyists and organizations that lobby required to publicly disclose political donations to parties and candidates?
16. To what extent are lobbyists required to publicly disclose ‘in kind’ contributions: In-kind contributions may include advertising, use of facilities, design and printing, donation of equipment, or the provision of board membership, employment or consultancy work for elected politicians or candidates for office?
17. Is information disclosed by lobbyists publicly available online in a searchable machine readable open-data format?
18. To what extent do the lobbyists register and provide sufficient/timely information in line with legislative obligations?
19. To what extent is there an independent, mandated and well-resourced oversight entity charged with managing registration of lobbyists, offering guidance to individuals and organizations, monitoring returns, and investigating apparent breaches or anomalies (this includes powers to investigate complaints made but also to instigate investigations even where no complaint has been lodged)?
20. To what extent is there a pro-active verification mechanism to audit disclosures and reports and detect anomalies?
21. In practice, to what extent are anomalies detected and followed up on by the oversight body?
22. In practice, to what extent are anomalies detected and reported by others (e.g. investigative journalists) followed up on by the oversight body?
23. To what extent does the law provide for penalties for knowingly filing a false lobbying registration return or failure to file a return?
24. To what extent are penalties for knowingly filing a false return or failure to file a lobbying registration return implemented in practice?
25. To what extent are oversight bodies required to publicly disclose the names of all individuals or organizations found to have violated lobbying rules or regulations?
26. To what extent are the names of all individuals or organizations found to have violated lobbying rules or regulations published in practice?
27. To what extent does the law require the publication of a ‘Legislative Footprint’ (document that details the time, event, person, and subject of legislators’ and senior public officials’ contact with a stakeholder) as an annex to all legislative records?
28. In practice, do legislators/public officials publish a legislative footprint including details of the time, person, and subject of contacts with stakeholders?
29. To what extent are senior public officials required to pro-actively publish documentation related to meetings: calendars, agendas, documentation received from lobbyists etc?
30. To what extent are public representatives (national and subnational legislators) required to pro-actively publish documentation related to meetings: calendars, agendas, documentation received from lobbyists etc? Is there a robust ethical framework for lobbyists (and companies) and lobbying targets in the country and to what extent is it working? Is the onus for integrity placed on both lobbyists and public officials/representatives?. Post-employment and Pre-employment Restrictions.
31. To what extent does the law provide proportionate moratoria or ‘cooling off periods’ before former members of parliament, senior public servants, ministers and advisers can work as lobbyists?
32. To what extent do ‘cooling off periods’ for those who wish to work as lobbyists apply to former members of parliament (national and subnational levels), senior public servants (including in regulatory bodies), members of executive (national and subnational levels) and advisers?
33. In practice to what extent do former members of parliament, senior public servants, members of the executive and advisers move easily and directly into the lobbying sector?
34. To what extent does the law require former members of parliament (national and subnational levels), senior public servants (including in regulatory bodies), members of executive (national and subnational levels) and advisers to receive permission from a designated ethics office/agency before taking up an appointment in the private sector where they could lobby their previous employer?
35. In practice, to what extent do former members of parliament (national and subnational levels), senior public servants (including in regulatory bodies), members of executive (national and subnational levels) and advisers seek permission from a designated ethics office/agency before taking up an appointment in the private sector where they could lobby their previous employer?
36. To what extent is there an independent, mandated and well-resourced oversight entity charged with managing post and pre-employment restrictions, offering guidance to individuals and organizations, and investigating apparent breaches or anomalies?
37. 37. To what extent is ethical/responsible lobbying addressed in public sector codes of conduct (e.g. do they specify standards on how public officials should conduct their communication with interest groups, specify a duty of documentation of contacts, duty to report unregistered or unlawful lobbying to superiors?)
38. To what extent do public sector codes of conduct specify standards on how public officials should deal with conflicts of interest issues?
39. To what extent do public sector codes of conduct specify standards on how public officials should deal with gifts and hospitality issues?
40. To what extent do public sector codes of conduct deal comprehensively with interest and asset declaration issues?
41. To what extent is there a complaint mechanism allowing any public official or citizen to report violations of the public sector code of conduct?
42. To what extent are there training and awareness-raising programmes for public officials on integrity issues, including lobbying rules and guidelines?
43. To what extent is there a statutory code of conduct for lobbyists including clear sanctions for failure to adhere to lobbying regulations?
44. In practice, to what extent are sanctions applied for failure to adhere to lobbying regulations?
45. To what extent does the law and/or the lobbyists’ code of conduct require disclosure and provide restrictions on lobbyists being hired to fill a regulatory, financial decision-making or advisory post in government?
46. To what extent does the law and/or codes of conduct prohibit simultaneous employment as a lobbyist and a public official?
47. To what extent is there a complaint mechanism allowing any policy-maker or citizen to report violations of the lobbying regulations?
48. To what extent are there self-regulatory code(s) of ethics managed by professional association(s) for lobbyists or by companies themselves?
49. To what extent do existing self-regulatory codes of ethics for lobbyists include specific behavioral principles that steer lobbyists away from unethical situations?
50. To what extent do existing self-regulatory codes require lobbyists to publicly disclose the identity of who they are representing and what they are lobbying for?
51. To what extent do existing self-regulatory codes prohibit simultaneous employment as a lobbyist and a public official?
52. To what extent is there a complaint mechanism allowing any member or non-member of the association to report violations of the lobbying code of ethics?
53. To what extent are there reasonably independent mechanisms for the monitoring and enforcement of compliance with the ethics code(s)?Are there are sufficient spaces in the system to allow for diverse participation and contribution of ideas and evidence by a broad range of interests that lead to policies, laws, and decisions which best serve society and broad democratic interests?. Consultation and Public Participation in Decision-making.
54. To what extent is the Parliament required by law to allow citizens and the public (corporations and civic organizations) to provide equal input to members regarding items under consideration, with sufficient notice and time incorporated in the legislative process to receive this input?
55. To what extent does the legal framework lay out in a law or a group of laws the varied means for public participation in the formulation, implementation, and evaluation of policies, including timeframes and specific mechanisms to disseminate public meeting information, attendance and participation rules, instruments and tools to submit comments and opinion on specific policies?
56. To what extent does the legal framework explicitly require public authorities to ensure equal participation by all affected groups and stakeholders in decision-making processes?
57. In practice, which forms of public participation are routinely used?
58. In practice, to what extent are consultations open to participation from any member of the public?
59. In practice, to what extent are the views of participants in the consultation process made public?
60. To what extent does the legal framework explicitly require public authorities to provide a detailed justification on why and how various submissions have or have not been taken into account in policy and decision-making processes after consultation?
61. To what extent is there a legal obligation to have a balanced composition (between private sector and civil society representatives) of advisory/expert groups?
62. In practice, to what extent is there a balanced composition (between private sector and civil society representatives) of advisory/expert groups?
63. To what extent are lobbyists prohibited from sitting on advisory/expert groups in a personal capacity? An advisory or expert group refers to any committee, board, commission, council, conference, panel, task force or any subcommittee set up by government (executive, legislative or judicial branch) or any of its subgroups to provide it with advice, expertise or recommendations.
64. To what extent are corporate executives prohibited from sitting on advisory groups in a personal capacity?
65. With regard to advisory/expert groups, to what extent is membership information, agendas, minutes and participants’ submissions required to be made public?